Kwok-Fung v The Hong Kong Special Administrative Region of the People's Republic of China
[2001] NZCA 174
•13 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA66/01 |
YUEN KWOK-FUNG
V
THE HONG KONG SPECIAL ADMINISTRATIVE
REGION OF THE PEOPLE’S REPUBLIC OF CHINA
| Hearing: | 7 May 2001 |
| Coram: | Richardson P Keith J Blanchard J Tipping J McGrath J |
| Appearances: | S A Connolly and J L Cagney for the Appellant M J Ruffin and H M Carrad for the Respondent |
| Judgment: | 13 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
Table of Contents
Paragraph No.
The issue, the proceedings and the conclusion.......................................................... [1]
The Hong Kong Extradition Agreement.................................................................... [4]
The New Zealand Extradition Act............................................................................. [8]
The relationship between the Agreement and the Act............................................. [14]
Who has the power of decision : Court, Minister or both?...................................... [24]
Result....................................................................................................................... [33]
The issue, the proceedings and the conclusion
The Extradition Agreement between New Zealand and the Hong Kong Special Administrative Region of the People’s Republic of China sets out grounds for refusing the surrender of alleged offenders. The Hong Kong authorities sought the extradition of the appellant under the Agreement on three charges of obtaining property by deception and one charge of evasion of liability by deception. The District Court rejected the application. The primary issue in this appeal is whether the District Court has the power to decide on one of the discretionary grounds stated in the Agreement whether the appellant should or should not be surrendered. It was on that ground that the District Court Judge decided that the appellant should not be surrendered.
On an appeal by the Hong Kong authorities by way of case stated on a point of law, Paterson J in the High Court ruled that, in terms of the Extradition Act 1999, the District Court had no power to exercise the particular discretion. Only the Minister of Justice could. With the leave of the High Court, the appellant appeals to this Court. We agree with the High Court and dismiss the appeal.
The Extradition Act in general requires the provisions of extradition treaties to be given effect even if they are inconsistent with provisions of the Act. If, as in the present case, a treaty provides wider grounds for refusing surrender than the Act does, the person who is the subject of the request is entitled to the benefit of those grounds if they are applicable. The next question is who – Court or Minister or both – is to decide whether the person has established the ground. The Hong Kong Agreement in effect leaves that issue to the domestic law of each Party. The New Zealand Parliament has made it clear in the Extradition Act that it is the Minister alone who has the particular discretionary power in issue in this case. As the judgment indicates, the Court has exclusive power to make some decisions, the Minister has exclusive power to make others and both are obliged to exercise a third group of powers. In particular, only the Court rules whether mandatory grounds for refusing surrender set out in the relevant treaty but not in the Act are made out, and, by contrast, only the Minister rules whether discretionary grounds set out in the treaty but not in the Act are established.
The Hong Kong Extradition Agreement
The Extradition Agreement, like many other extradition treaties, requires each Party to it to surrender to the other Party any person found in its jurisdiction who is wanted by the other for prosecution or for the enforcement of a sentence for certain offences (article 1 of the 1998 Agreement scheduled to SR 1998/243). Following a standard pattern, the Agreement identifies the offences it covers (article 2), sets out the procedures for requesting surrender (articles 8-17) and states restrictions on the duty of surrender (articles 6 and 7; see also articles 3-5).
The restrictions in the Hong Kong Agreement fall into two categories, mandatory and discretionary. In terms of the former, a person shall not be surrendered if, for instance, the Requested Party has substantial grounds for believing that the offence in issue is of a political character (article 6(1)(a)). Under the latter, surrender may be refused if, for example, the Requested Party considers that the offence is, having regard to all the circumstances, not sufficiently serious to warrant the surrender (article 7(1)(a)).
It was by reference to one of those discretionary restrictions (in article 7(1)(d)) that the District Court Judge ruled that the appellant was not to be released:
Surrender may be refused if the Requested Party considers that
…
(d)in the circumstances of the case, the surrender would be incompatible with humanitarian considerations in view of the age, health or other personal circumstances of the person sought; … .
The Judge set out the grounds for his conclusion in this way in the case stated:
(d)Relying upon s11 of the Act [set out in para [14] below], and on the assumption that he had jurisdiction to consider Article 7(1) of the Agreement, and having determined that there was no excessive delay, he determined that in all the circumstances of the case in terms of Article 7(1)(d), it would be incompatible with humanitarian considerations to surrender Mr Yuen having regard to certain matters. In summary, those matters were:
(i)Destruction of company records in Hong Kong;
(ii)Establishment of Mr Yuen in New Zealand with a new business;
(iii)Possibility of Mr Yuen being physically harmed or killed if returned to Hong Kong;
(iv)Possibility of the complainant obtaining a protection order to prevent Mr Yuen’s ultimate return to New Zealand;
(v)The alleged offences arose from one contractual transaction;
(vi) Standard of proof.
The New Zealand Extradition Act
The primary question is whether, under the New Zealand Extradition Act, the District Court could rule on these matters under article 7(1)(d) or whether only the Minister could.
The question arises because the ground stated in that provision of the Agreement is wider than the equivalent discretionary ground stated in the Extradition Act, a ground which the District Court held the appellant had not satisfied:
8 Discretionary restrictions on surrender
(1)A discretionary restriction on surrender exists if, because of—
(a) The trivial nature of the case; or
(b)If the person is accused of an offence, the fact that the accusation against the person was not made in good faith in the interests of justice; or
(c)The amount of time that has passed since the offence is alleged to have been committed or was committed,—
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
The District Court Judge’s reason for holding that the appellant did not satisfy that provision was that there was no excessive delay which he considered was required by para (c), the only part of s8(1) which the appellant could invoke.
The question of law for which leave was given to appeal to this Court is the first stated for the High Court:
(a)As a matter of law, did I have jurisdiction to exercise a discretionary power restricting surrender outside Section 8 of the Extradition Act 1999 based on Article 7(1)(d) of the Agreement?
The answer is to be found in the Extradition Act, the Agreement and their interaction.
Part 1 of the Act contains four provisions which are critical for this case. Section 7 sets out mandatory restrictions on surrender, such as the political offence exception, the surrender being for the purpose of prosecuting or punishing the person on account of their race or other proscribed grounds, or double jeopardy. Section 8 sets out the discretionary restrictions on surrender; subs (1) is in para [9] above; subs (2) provides for a discretionary restriction if the person is still the subject of criminal proceedings for another offence. Section 9 indicates that later parts of the Act regulate the application of those mandatory and discretionary restrictions:
9 Application of sections 7 and 8
Parts 3 and 4 set out the circumstances in which the mandatory and discretionary restrictions on surrender set out in sections 7 and 8 are to be considered, and who makes the decision in any particular case as to whether a restriction applies.
(The fourth critical provision of Part 1 is s11; para [14] below.)
Part 3, which regulates extradition to treaty countries, including Hong Kong, is the relevant part in this case. (Part 4 provides a simpler process for Australia and other designated countries.) Section 9 reflects the fact that extradition treaties do not in general dictate which agency of the state is to make the relevant decisions. In particular they do not, in general at least, indicate how the treaty is to be given effect within each State party and in particular whether decisions that the specified restrictions on surrender apply are to be made by the executive government, by the courts or by both. That is left for local legal systems to determine in recognition of the fact that the allocation of such powers will vary from one country to another, and indeed over time, as appears from the still valuable scholarly account by Ivan Shearer, Extradition in International Law (1971) 197-200.
Similarly, there is nothing in the Hong Kong Agreement itself to indicate that the decisions under article 7 are to be made by the executive, the courts or both. The Agreement mainly uses the general expressions “The Parties” or “Party” (articles 1, 2(1), (3), (4), 3(2), 4, 5, 6(1), (2), 7(1), (2), (3) (4) (5), 8(1), (2), 9(1), (3), 10(2), 11, 12(1), 13(1), 14, 15(1), (2), (3), 16(1), (2), (3), (4), 17(1), (2), (3), 18(1), (2), 19(1), (2), 20(1), 21(1), (3), (4)). One exception is article 3(1) under which the right to refuse to surrender nationals is reserved. That right is to be exercised by “the Government” of each party, and the related provisions of the Act consistently confer powers only on the Minister (s30(2)(c) and (3)(c)). Some of the provisions – for instance relating to the death penalty, the initial request, the provision of information, and the suspension or termination of the agreement – would in practice operate only at the executive level. Most importantly in the present context article 7(1) confers the power on “the Requested Party”.
The relationship between the Agreement and the Act
That lack of precision in the Agreement about who is to make decisions is important for the application and effect of s11, the fourth of the provisions of Part 1 critical in this case:
11 Construction of extradition treaties
(1)If there is an extradition treaty in force between New Zealand and an extradition country, the provisions of this Act must be construed to give effect to the treaty.
(2)Despite subsection (1), no treaty may be construed to override—
(a) Section 7 [mandatory restrictions]; or
(b) Section 24(2)(d) or section 45(5) [sufficiency of evidence]; or
(c) Subsection (2)(b) [danger of torture] or subsection (3)(a) [prospect of death sentence] of section 30 …; or
(d) Any provision conferring a particular function or power on the Minister or a court.
(3) This section is subject to section 105.
Section 11(1) is a very strong direction. The “construction” it directs is more than the mere interpretation of the Act. It uses much stronger wording than the interpretation directions in the Interpretation Act 1999 s4 and the New Zealand Bill of Rights Act 1990 s6 which is also to be read with ss4 and 5. To use the wording of subs (2), the Act is “overridden” by inconsistent treaty provisions or, as the equivalent provision in s3(4) of the Extradition Act 1965 put it, the Act must be read “subject to” the terms of the treaty and construed to give effect to it. Other statutes empowering the making of regulations to give effect to treaties have provisions to similar effect (eg United Nations Act 1946 s2(2), Income Tax Act 1994 sBB11(1), Social Welfare (Transitional Provisions) Act 1990 s19(1)(b), Territorial Sea and Exclusive Economic Zone Act 1977 s30 and International Energy Agreement Act 1972 s5(1)). The Regulations Review Committee in its Report on the provisions in the Bill which became ss11 and 15 (under which Orders in Council are made) acknowledged the need for such provisions, while calling for very careful consideration of their wording. It noted the comparable provisions in the 1965 Act and the Australian Extradition Act 1988 s11.
The process which s11 of the New Zealand Act requires can perhaps be better thought of as reconstruction of the Act, to the extent it is inconsistent with the treaty, to make it consistent. The strength of the direction recognises the basic principles of international law that treaties must be complied with and that a state cannot invoke its internal law to justify its failure to perform a treaty (articles 26 and 27 of the Vienna Convention on the Law of Treaties). In the specific context of extradition, the Act also recognises those principles in its objective stated in s12 : the Act, among other things, is an Act
(a)To enable New Zealand to carry out its obligations under extradition treaties.
The discretionary grounds provisions help illustrate the operation of s11(1). If a treaty had no discretionary ground, New Zealand, as the Requested State, would not under the treaty be able to refuse surrender on a discretionary ground. To do so would be to breach its basic obligation to surrender the accused person. In such a situation s11(1) would require s8 not to be applied or in effect require it to be read out of the Act. By contrast if, as in the present case, the discretionary grounds in the treaty are broader than those in the Act, they are read into the Act which is then construed appropriately. The question in this case is how that is to be achieved.
The direction in s11(1) is not unqualified. Subsection (2) (like s3(3) of the 1965 Act) qualifies the basic proposition in subs (1) by excepting basic protections in the Act from the override. It accordingly contemplates the prospect that the Act may override a particular treaty. That apparent exception to the principle that treaties must be complied with may be explained in three ways. First, the basic protections in (a)-(c) are routinely included in bilateral extradition treaties or in one case (the torture exception) in a very widely accepted multilateral treaty (para [28] below); and, so far as (d) is concerned, it is not in general the practice for extradition treaties to dictate whether the executive or the judiciary is to exercise a particular function. Secondly, subs (2) is in effect a direction to the executive that in negotiating extradition treaties it is to ensure that the listed protections are incorporated; such directions are expressly given by ss100 and 101 of the Extradition Act 1999 and were given in a different way in the original Imperial Extradition Act 1870 s4 which provided that an Order in Council applying the Act to a foreign state was not to be made unless it contained certain provisions. Thirdly, the protections stated in subs (2) essentially look to treaties concluded in the future. That arises from subs (3) which makes s11 subject to s105, a provision concerned with treaties in force when the 1999 Act came into force. Since the Hong Kong Agreement was concluded in 1998 and the relevant Order in Council was made under the Extradition Act 1965, we now turn to that provision.
Section 105 is concerned with Orders in Council, giving effect to treaties, made under the earlier Extradition Act 1965 and, before that, under the United Kingdom legislation which the 1965 Act replaced. According to s104 those Orders in Council continue to have effect as if made under the 1999 Act. The Order in Council concerning the Hong Kong Agreement made under the 1965 Act is such an order. Section 105 is as follows:
105 Certain conditions in Extradition Act 1965 continue to apply
(1)Subsection (2) applies to any Order in Council referred to in subsection (1) or subsection (2) of section 104 that has not been amended and has not ceased to have effect since the commencement of this Act.
(2)If this subsection applies,—
(a)This Act applies in relation to the extradition country to which the Order in Council relates subject to the conditions to which the extradition country was subject—
(i)Under subsections (1) to (6) of section 5, section 5A, and section 9(1)(f) of the Extradition Act 1965; or
(ii)By virtue of the operation of section 5 (7) of that Act; and
(b)Sections 7, 8, and 30(3)(d) (including where section 30(3)(d) is applied under section 49) of this Act do not apply in relation to the extradition country to the extent that they are inconsistent with any provision of the relevant extradition treaty.
The possibly relevant part of s105 is subs (2)(b). Under it, the Hong Kong Agreement can exclude ss7 (mandatory restrictions, para [11] above), 8 (discretionary restrictions, paras [9] and [11] above) and 30(3)(d) (Ministerial discretion relating to compelling or extraordinary circumstances, para [26] below) to the extent that those provisions are inconsistent with any provision of the Agreement.
As we have noted, the relevant discretionary ground under the Agreement for refusing surrender has a wider scope in the circumstances of this case than the discretionary surrender provision in s8. Does it follow from s105(2)(b) and s11(1) that s8 is to be read to give effect to the wider article 7(1)(d)?
That question needs to be divided into two parts, relating in turn to s105(2)(b) and to s11(1). Under the first, s8 is not to be applied “to the extent that [it] is inconsistent with [article 7(1)(d)]”. In the circumstances of this case, s8 can be applied along with article 7(1)(d). It just does not go as far. Its narrower scope does not mean that in this context it is inconsistent with article 7(1)(d) : it can be read consistently with that provision and can be given its full effect. Paterson J also held that there was no inconsistency. It follows that s105 does not affect the application of s11.
We now turn to the second part of the question stated in para [21]. Section 11 directs that the Act must be construed to give effect to the Agreement, subject to the limits in subs (2). None of the provisions in paras (a)-(c) of subs (2) is relevant in this case : they deal with the mandatory restrictions on surrender, the evidence required before surrender is allowed, and the prospect of torture or the death penalty in the Requesting State. Paragraph (d) may be relevant. Under it no provision in the Agreement is to be construed to override any provision conferring a particular function or power on the Minister or a court. That, along with s9 (para [11] above), directs us to the provisions in Part 3.
Who has the power of decision : Court, Minister or both?
Article 7 of the Agreement, it will be recalled, does not indicate whether the executive government or a court or both is or are to make decisions under it : “Surrender may be refused if the Requested Party considers that …”. That is to say, the Agreement contains no provision about who is to exercise the power. It contains nothing inconsistent with any Part 3 provisions allocating powers between the Minister and the District Courts. What has to be decided under Part 3 might still of course be affected by s11(1) and the Agreement. We come back to that after considering the question of who has the relevant power of decision under Part 3.
Part 3 provides that a District Court is to determine whether the person is “eligible for surrender” (s24). If the Court is not so satisfied it must in general discharge the person (s26(4)). If it does determine that the person is eligible for surrender it refers the request to the Minister (s26(1)) who must then, as a distinct matter, determine whether the person is to be surrendered (s30).
The relevant provisions of Part 3, among other things, require the Court and Minister to decide whether certain mandatory and discretionary restrictions apply:
24 Determination [by the court] of eligibility for surrender
(3)The person is not eligible for surrender if the person satisfies the court—
(a)That a mandatory restriction on the surrender of the person applies under section 7; or
(b)That the person’s surrender would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country.
(4)The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.
30Minister must determine whether person to be surrendered
(2)The Minister must not determine that the person is to be surrendered—
(a)If the Minister is satisfied that a mandatory restriction on the surrender of the person applies under section 7;
…
(3)The Minister may determine that the person is not to be surrendered if—
…
(b)It appears to the Minister that a discretionary restriction on the surrender of the person applies under section 8; or
…
(d)… it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or
(e)For any other reason the Minister considers that the person should not be surrendered.
The appellant’s argument emphasised s24(3)(b). The surrender, Mr Connolly submitted, “would not be in accordance” with article 7(1)(d) if the Court did not rule in respect of that provision. For reasons which are essentially those given by Paterson J, we think that argument faces two insuperable difficulties. One relates to the wording of s24(3)(b), the other to the statutory context in which it appears. The first difficulty is that it is “in accordance” with article 7 for a person to be surrendered even although one of the discretionary grounds has been made out. The grounds are “discretionary” and article 7 expressly provides only that surrender “may” be refused on the grounds listed; by contrast if a mandatory ground is established surrender “shall be” refused. The second point is connected : subs (3), especially when read with subs (4), is concerned only with mandatory restrictions. It contemplates treaties which have mandatory grounds additional to those stated in s7. If they do, it is for the Court to decide whether that treaty ground has been made out. By contrast, subs (4) of s24 which is concerned with discretionary restrictions has only the one limb : it refers only to s8 and not to the relevant treaty. The limited role of the Court in respect of the discretionary grounds is further emphasised by the wider discretionary powers expressly conferred on the Minister by paras (d) and (e) of s30(3); they are additional to para (b) which requires the Minister to consider the discretionary grounds stated in s8. While para (b) matches the Court’s power under s24(4), the Court has no additional heads of power comparable to those conferred on the Minister by s30(3)(d) and (e). Again, by contrast with the Court, but this time in the opposite direction, the Minister is given express power to rule only on the mandatory grounds in s7 and not on any additional mandatory grounds in the treaty (compare s30(2)(a) with s24(3)(a) and (b)). Parliament has conferred wider express authority on the Court in respect of mandatory grounds and narrower authority in respect of discretionary grounds.
That is part of an overall approach by Parliament to allocation under which
•some powers are conferred on both the Court and the Minister : statutory mandatory restrictions and statutory discretionary restrictions;
•some powers are conferred only on the Court : the necessary documentation, whether the offence is an extradition offence, sufficiency of evidence, mandatory treaty restrictions; and
•some powers are conferred only on the Minister : danger of torture, mandatory and discretionary restrictions on surrendering citizens, danger of the death penalty, the humanitarian and other discretions conferred by s30(3)(d) and (e) (para [26] above) and the principle of specialty.
The reference to the Minister’s role to protect persons from the danger of torture (consistently with article 3 of the Convention against Torture) provides an opportunity to mention the appellant’s argument, in his written submissions, based on the guarantee in s9 of the Bill of Rights against torture and cruel, degrading and disproportionately severe treatment. Under the Act – and the Agreement makes no provision to the contrary – that matter is for the Minister.
We return to s11(1) and the Agreement. The Agreement in article 7 does in part set out wider discretionary powers than those stated in s8. It is not matched, in express words at least, in s24 or s30. The Act must however be construed (indeed overridden) to give effect to that ground. The District Court Judge held that because of s11, s8 must give way where there is an inconsistency between s8 and article 7 – as he held there was, and is indeed common ground. So far as their substantive effect is concerned he then went on to consider himself whether the appellant satisfied the lower threshold set by article 7.
We agree that the discretionary provisions in the Act must give way to article 7 if they cannot be read consistently with it. That is what s11 says. The person whose surrender is being sought has the right to have that treaty ground considered. But it does not follow without more that the Court, as well as or instead of the Minister, has power to make that assessment. As we have already said, the question of who is to make that assessment is not decided by the Agreement. That is left to national law, in this case the New Zealand Extradition Act. Under the Act that assessment is to be made by the Minister in terms of s30(3)(d) and (e). Those provisions must be construed to give effect to this aspect of the Agreement. There is however no need to construe s8 or s24(3)(b) in that way with the result that courts can also rule directly on that aspect. As already indicated, s24(3)(b) cannot itself be read that way (and were there a prospect of override s11(2)(d) might come into play), the Agreement does not require that courts rule on the article 7 issues, and the Minister plainly can, and must, given the terms of s11 and article 7. He can do that under s30(3)(d) and (e) read in terms of s11 with article 7.
That reading, preferring the Minister and excluding the Court, is also supported by the legislative history. The Bill as introduced into Parliament included within the statement of the discretionary grounds in cl 8(1) (which became s8(1)) a fourth factor – “the age, health, or other personal circumstances of the person”. That was moved by the Foreign Affairs, Defence and Trade Select Committee from that provision to Part 3 (now s30(3)(d)) and to related provisions of Part 4 : “The main reason for this change [explained the Committee] is to make the decision on this ground a matter for the Minister only and not for the Court.” The original cl 8(1) was also narrowed by omitting a reference to “humanitarian considerations” which, according to the Committee, “was potentially broader than intended”. The clear legislative purpose was to confine the Court’s power in respect of discretionary humanitarian grounds and to widen the Minister’s. Any Ministerial determination in respect of those grounds could of course be subject to an application for judicial review or for habeas corpus.
We accordingly conclude that Paterson J was right in ruling that the District Court Judge did not have jurisdiction to exercise a discretionary power restricting surrender outside s8 based on article 7(1)(d).
Result
At the end of his judgment Paterson J remitted the matter back to the District Court for further consideration. The matter does have to be remitted back since it is the District Court that makes the determination whether the appellant is to be surrendered and, if it does so determine, issues the warrant in terms of s26. The matter then passes to the Minister. The argument based on article 7(1)(d) provided the only basis on which the appellant succeeded before the District Court. The other conditions of the Agreement and the Act were satisfied. Accordingly it appears that all that remains for the District Court to do is to take the steps provided for in s26.
In agreement with Paterson J, we answer the question No. The District Court did not have jurisdiction to exercise a discretionary power restricting surrender outside s8 of the Extradition Act based on article 7(1)(d) of the Agreement. The appeal is dismissed and the matter remitted to the District Court in the terms indicated in para [33] above.
Solicitors
B Ellis, Auckland for the Appellant
Meredith Connell, Auckland for the Respondent
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